apeal213of16.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.213 OF 2016
Liladhar s/o. Kashinath Gajbhiye,
Aged about 48 years, Occ. Labour,
R/o. Karambhad, Tah. Parshioni,
Dist. Nagpur ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer
Parshioni, District Nagpur ...RESPONDENT
-------------------------------------------------------------------------------------------
Ms. P. P. Chobe, counsel for the appellant (Appointed)
Mr. N.H. Joshi, Additional Public Prosecutor for Respondent.
-------------------------------------------------------------------------------------------
CORAM:
ROHIT B. DEO, J.
DATE OF DECISION : 05.01.2018 ORAL JUDGMENT:
Challenge is to the judgment and order dated 17.5.2016, delivered by Sessions Judge, Nagpur in Sessions Trial 191 of 2015, by and under which, the appellant (hereinafter referred to as "the accused") is convicted for offence punishable under section 307 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for ten years and to ::: Uploaded on - 05/01/2018 ::: Downloaded on - 07/01/2018 02:05:18 ::: apeal213of16.odt 2 payment of fine of Rs. 5,000/- and is further convicted for offence punishable under section 498-A and is sentenced to suffer simple imprisonment for three years and to payment of fine of Rs.5,000/-. 2 Heard Smt. P. P. Chobe, the learned counsel for the accused and Shri. N.H. Joshi, the learned Additional Public Prosecutor for the respondent / State.
3 The accused is in jail custody since 4.2.2015. This appeal was heard on 4.1.2018 at some length. Having given my anxious consideration to the evidence on record, I was inclined to uphold the conviction and to alter the sentence, which in the circumstances, I prima facie felt was too harsh. 4 The circumstances which weighed with me while arriving at the prima facie opinion was that the burns suffered by the complainant, who is the wife of the accused, were superficial although the medical evidence suggested 18% burns. The evidence on record has not brought out clearly the exact contours of the incident. The fact that the accused poured kerosene and ignited a match stick causing the complainant to suffer burn injuries is duly proved by the evidence of the ::: Uploaded on - 05/01/2018 ::: Downloaded on - 07/01/2018 02:05:18 ::: apeal213of16.odt 3 complainant and Ms. Vidarbhakanya the daughter of the complainant and the accused. However, the extent and volume of the kerosene, the origin of the incident and the manner in which the attempt to set complainant afire was made is a bit blurred. It is on record that at the relevant time the accused was under the influence of liquor.
5 However, at the conclusion of the hearing, the complainant Surekha Liladhar Gajbhiye has appeared and has filed on record an affidavit dated 5.1.2018. The affidavit reads thus:
"The abovesaid deponent as hereby take an oath and solemnly affirms as under:
That on the basis of my complaint, the proceedings under section 498-A and 307 of IPC were initiated against my husband / appellant.
In this case the trial court has given conviction for offence punishable under section 307 and 498-A of IPC, thereby sentencing the Appellant to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 5,000/- in default to further suffer simple imprisonment for 6 months, sentence for offence under section 307 of IPC and further convicted vide section 235 of Code of Criminal procedure for the offence punishable under section 498A of IPC and to pay fine of Rs. 5,000/- in default to further suffer simple imprisonment for 3 months, vide order ::: Uploaded on - 05/01/2018 ::: Downloaded on - 07/01/2018 02:05:18 ::: apeal213of16.odt 4 dated 17.5.2016. Since 4.2.2015 the appellant is in jail.
In the meantime I used to meet the appellant with our children. I have found that he is under full repentance what actually he did and I am also convinced that under influence of liquor only he has attacked me, otherwise he is of good nature. So request is made to this Hon'ble Court by me and on behalf of my children to release him on the sentence already undergone. He may be given one opportunity of rehabilitation.
I am swearing this affidavit with out of free will with full consciousness without any force, coercion and undue influence by anybody".
6 The learned counsel for the accused Smt. P. P. Chobe, has satisfied herself about the identity of the deponent. I have personally interviewed the deponent. Her anxiety to put a quietus to the unfortunate incident appears to be genuine and bonafide. Smt. Chobe, the learned counsel for the accused has invited my attention to the judgment of the Hon'ble Apex Court in Ishwar Singh Vs. State of M.P., 2009 ALL MR (Cri.) 560 (S.C.). 7 On a holistic consideration of the evidence on record and the desire of the complainant to make peace with her husband
- accused, I do not see any difficulty in maintaining the conviction ::: Uploaded on - 05/01/2018 ::: Downloaded on - 07/01/2018 02:05:18 ::: apeal213of16.odt 5 and altering the sentence to already undergone. 8 The conviction of the accused under section 307 and 498-A of IPC is maintained. However, for both the offences the accused is sentenced to imprisonment already undergone. 9 The accused be released from jail custody forthwith unless he is required in some other case.
10 The appeal is partly allowed and disposed of in the above terms.
11 The fees of the appointed counsel are quantified at Rs. 5,000/-.
JUDGE RS Belkhede ::: Uploaded on - 05/01/2018 ::: Downloaded on - 07/01/2018 02:05:18 :::